By Bob Needham
Michigan Law
The idea that nations should pay reparations for previous acts of colonization has gained some traction—but real solutions probably require a new approach, according to Professor Steven Ratner.
“There’s been a lot of debate about whether the ex-colonial powers owe some kind of compensation to those people who were colonized for decades or centuries,” Ratner said. That compensation can mean anything from the return of stolen artworks to large-scale financial compensation.
In a recent article in the “American Journal of International Law,” Ratner argues that efforts to find an international legal duty for reparations to former colonies are likely to be ineffective. Rather than litigation, he proposes voluntary negotiations as a more promising way to get reparations to those who deserve them.
Ratner, the Bruno Simma Collegiate Professor of Law, recently answered five questions about the issue:
1. How well established is the concept of reparations for colonialism?
It varies. On the issue of art restoration, we see very serious conversations between developing countries and northern museums that possess those countries’ art about how that art was obtained. Even in situations where the transfer was not necessarily illegal at the time but was still tied up in the colonial enterprise, we have begun to see the return of art.
There have been a handful of other points of progress. A number of indigenous peoples in Latin America and in Africa have successfully brought claims against governments for compensation for taking of their lands. And we have a few discrete examples of people winning in domestic courts over atrocities conducted during the colonial period.
The clearest example is Namibia’s agreement with Germany on compensation for the German genocide against the Herero and Nama people in the early part of the 20th century. Under an agreement concluded in 2021, Germany recognized that it committed genocide and agreed to provide greater assistance to Namibia. A lot of scholars criticize that agreement for certain things, but I see it as progress.
2. Your paper argues that international law doesn’t really include a duty to pay reparations. Why is that?
The problem is that under international law, typically a state has a duty to pay reparations to another state only in response to a violation of international law. Yet it’s very hard to say as a matter of international law that colonialism itself was illegal while it was being practiced.
Certainly, some scholars have tried to reinterpret some of international law’s rules in a way that suggests that it acknowledged the illegality of colonialism at the time. I think it’s really a stretch.
I would rather see the intellectual and the political will that it takes to reinterpret a rule used instead to foster negotiations between states or other entities leading to ad hoc agreements on reparations.
3. You also consider the law of transitional justice as an alternative approach, but you conclude that doesn’t really work either. Why not?
Transitional justice is a set of international law and domestic law practices and principles that evolved during the transition from autocratic rule to democratic rule in Latin America and Eastern Europe. It does have certain principles that victims have a right to reparations and that states must acknowledge their wrongs.
However, transitional justice is really a model that’s confined to a single country. Even within one country, there have been many different versions that have been followed. Each process ends up being a highly individualized and contentious decision by the people of that state. Extending that to two countries or even multiple countries would be extremely complex as a way to actually get reparations to those who deserve them.
4. What will it take to move this effort forward?
We need an acceptance of a moral obligation to provide reparations at both the level of civil society and at the level of governments. My approach aims to create the conditions by starting with negotiation of individual agreements.
These agreements need to address what’s feasible. Some colonial practices can be addressed through transfer of money or changed economic relationships. Others need to be addressed through restitution of art. Others can be addressed through apologies and acknowledgement. But each colonial relationship has to be examined on its own terms.
If we open up a dialogue to show that there are many different possibilities, and we look at what have been the best practices and what have not been the best practices, eventually we can get some expectations about what such agreements should look like. I’m not wildly optimistic that this is going to lead to a flood of agreements, but I think my proposal is more realistic than trying to litigate this issue, especially in an international court.
5. What is the role of public sentiment on reparations?
There’s a real challenge in getting citizens to think about this. In the US, for instance, we think that we weren’t colonists, when in fact there were American colonies in the Philippines and elsewhere, as well as the conquest of Native Americans.
Reparations for classic colonialism is a much bigger issue for Europe, but it’s a real challenge when Europeans are focusing on either the need to spend domestically or to send money to Ukraine. The idea of sending money to Central Africa because of atrocities and practices 50 or 100 or 200 years ago is a much harder thing to convince people to do.
Michigan Law
The idea that nations should pay reparations for previous acts of colonization has gained some traction—but real solutions probably require a new approach, according to Professor Steven Ratner.
“There’s been a lot of debate about whether the ex-colonial powers owe some kind of compensation to those people who were colonized for decades or centuries,” Ratner said. That compensation can mean anything from the return of stolen artworks to large-scale financial compensation.
In a recent article in the “American Journal of International Law,” Ratner argues that efforts to find an international legal duty for reparations to former colonies are likely to be ineffective. Rather than litigation, he proposes voluntary negotiations as a more promising way to get reparations to those who deserve them.
Ratner, the Bruno Simma Collegiate Professor of Law, recently answered five questions about the issue:
1. How well established is the concept of reparations for colonialism?
It varies. On the issue of art restoration, we see very serious conversations between developing countries and northern museums that possess those countries’ art about how that art was obtained. Even in situations where the transfer was not necessarily illegal at the time but was still tied up in the colonial enterprise, we have begun to see the return of art.
There have been a handful of other points of progress. A number of indigenous peoples in Latin America and in Africa have successfully brought claims against governments for compensation for taking of their lands. And we have a few discrete examples of people winning in domestic courts over atrocities conducted during the colonial period.
The clearest example is Namibia’s agreement with Germany on compensation for the German genocide against the Herero and Nama people in the early part of the 20th century. Under an agreement concluded in 2021, Germany recognized that it committed genocide and agreed to provide greater assistance to Namibia. A lot of scholars criticize that agreement for certain things, but I see it as progress.
2. Your paper argues that international law doesn’t really include a duty to pay reparations. Why is that?
The problem is that under international law, typically a state has a duty to pay reparations to another state only in response to a violation of international law. Yet it’s very hard to say as a matter of international law that colonialism itself was illegal while it was being practiced.
Certainly, some scholars have tried to reinterpret some of international law’s rules in a way that suggests that it acknowledged the illegality of colonialism at the time. I think it’s really a stretch.
I would rather see the intellectual and the political will that it takes to reinterpret a rule used instead to foster negotiations between states or other entities leading to ad hoc agreements on reparations.
3. You also consider the law of transitional justice as an alternative approach, but you conclude that doesn’t really work either. Why not?
Transitional justice is a set of international law and domestic law practices and principles that evolved during the transition from autocratic rule to democratic rule in Latin America and Eastern Europe. It does have certain principles that victims have a right to reparations and that states must acknowledge their wrongs.
However, transitional justice is really a model that’s confined to a single country. Even within one country, there have been many different versions that have been followed. Each process ends up being a highly individualized and contentious decision by the people of that state. Extending that to two countries or even multiple countries would be extremely complex as a way to actually get reparations to those who deserve them.
4. What will it take to move this effort forward?
We need an acceptance of a moral obligation to provide reparations at both the level of civil society and at the level of governments. My approach aims to create the conditions by starting with negotiation of individual agreements.
These agreements need to address what’s feasible. Some colonial practices can be addressed through transfer of money or changed economic relationships. Others need to be addressed through restitution of art. Others can be addressed through apologies and acknowledgement. But each colonial relationship has to be examined on its own terms.
If we open up a dialogue to show that there are many different possibilities, and we look at what have been the best practices and what have not been the best practices, eventually we can get some expectations about what such agreements should look like. I’m not wildly optimistic that this is going to lead to a flood of agreements, but I think my proposal is more realistic than trying to litigate this issue, especially in an international court.
5. What is the role of public sentiment on reparations?
There’s a real challenge in getting citizens to think about this. In the US, for instance, we think that we weren’t colonists, when in fact there were American colonies in the Philippines and elsewhere, as well as the conquest of Native Americans.
Reparations for classic colonialism is a much bigger issue for Europe, but it’s a real challenge when Europeans are focusing on either the need to spend domestically or to send money to Ukraine. The idea of sending money to Central Africa because of atrocities and practices 50 or 100 or 200 years ago is a much harder thing to convince people to do.
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